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Housing case law update - March 2021

Paul Lloyd, Helen Gascoigne and Catherine Craven analyse the latest court rulings and Ombudsman investigations of interest to  housing associations and local authorities.

The Corporation of the Trinity House of Deptford Strond v Prescott [2021] EWHC 283 (QB)

High Court, 11 February 2021

The High Court has confirmed that the exemptions regarding rent arrears, contained in the Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021, do not apply to section 21 possession claims.

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The landlord sought a declaration that the High Court was satisfied that the tenants were in substantial rent arrears and that the restrictions on possession, as laid out in the Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 (“the Regulations”), did not apply. The Regulations restricted evictions of residential tenants during the COVID-19 pandemic and prohibited writs and warrants of possession or the service of an eviction notice until after 21 February 2021. However, the Regulations also stipulated that the prohibitions did not apply if the Court was satisfied that there were substantial rent arrears and that the writ or warrant related to one of the rent arrears-related grounds laid out in the Housing Act 1988.

The tenants had fallen into substantial arrears (approximately £70,000 over a 21-month period) and the landlord sought possession after serving a section 21 notice. The tenants were ordered by the County Court to give up possession in January 2020, but they did not vacate the property. The warrant for possession was not executed due to the stay on possession proceedings imposed during the first COVID-19 national lockdown. The landlord applied to transfer the matter to the High Court, which issued a writ of possession in January 2021. The landlord argued that the Regulations were discriminatory under the European Convention on Human Rights by providing that, in cases where there were substantial rent arrears, a landlord that had obtained a possession order on a rent arrears-related ground could execute a writ, whereas a landlord which had proceeded under section 21 could not.

The High Court, in refusing the application, held that the landlord had gained a possession order by using the section 21 no fault procedure, meaning that the possession order had not been made on the basis of rent arrears. Consequently, the landlord could benefit from the rent arrears exception, even though the arrears were “substantial” (i.e. a sum equivalent to at least six months’ arrears).

A copy of the judgment is here.

Ficcara and others v James [2021] UKUT 38 (LC)

Upper Tribunal (Lands), 20 February 2021

The Upper Tribunal has held that a tenant could not obtain more than one rent repayment order, even if their landlord had committed more than one specified offence.

The tenants occupied a flat until July 2019. In November 2019, three of the tenants each applied to the First-tier Tribunal for a rent repayment order under s.41 of the Housing and Planning Act 2016, alleging that their former landlord had committed three “distinct” criminal offences under the Housing Act 2004 and the Protection from Eviction Act 1977. The First-tier Tribunal held that the landlord had committed three criminal offences, but ruled that it could only make one order, limited to a maximum of 12 months’ rent, rather than three orders. This was because the rent repayment order was for the repayment of rent and could not exceed the amount of rent paid. The tenants appealed, arguing that a separate rent repayment order should have been made for each offence and that “Parliament cannot have intended a tenant who had been the victim of numerous offences to be compensated to the same extent as a tenant whose landlord had committed only one offence”.

The Upper Tribunal, in dismissing the appeal, held that whilst the number of offences was relevant to the amount of the rent repayment order, the total sum that a landlord could be ordered to pay was capped at 12 months’ rent. The description of the orders as rent “repayment” orders indicated that Parliament's intention was that the sum paid should be reimbursed rather than be multiples of the same sum.

A copy of the judgment is here.

R (Minott) v Cambridge CC [2021] EWHC 211 (Admin)

High Court, 8 February 2021

The High Court has held that the passage of time as a result of unlawfully occupying a property does not amount to a material change in circumstance, allowing for a new homelessness application, or establish a local connection where one does not already exist.

Mr Minott, who had been “sofa surfing” with friends in Cambridge after leaving his father’s home due to a relationship breakdown, applied to Cambridge City Council for housing assistance under the Housing Act 1996. Cambridge City Council accepted that Mr Minott had a priority need and provided him with temporary accommodation. After making enquiries, Cambridge City Council decided that Mr Minott had no local connection with the area but that he had a connection with Sandwell Metropolitan Borough Council, the borough he had lived in with his father. Sandwell Metropolitan Borough Council agreed that it had a duty to provide Mr Minott with assistance, and Cambridge City Council terminated his licence to occupy the temporary accommodation. However, Mr Minott questioned the referral and refused to leave the accommodation. Mr Minott subsequently made a new homelessness application to Cambridge City Council, claiming that his occupation of the accommodation for more than six months now constituted a “normal residence” and could be taken into account when determining whether there is a local connection. This was rejected by Cambridge City Council, so Mr Minott sought judicial review.

The High Court, in refusing the application, held that the passing of time and Mr Minott’s unlawful occupation of the accommodation did not provide him with a local connection to the area or amount to a “new fact” for the purposes of a fresh homelessness application. Also, the Court held that his refusal to allow Cambridge City Council to recover possession of the accommodation (thus stopping other families from using it) and his failure to engage with Sandwell Metropolitan Borough Council were “tantamount to a manipulation of the homeless statutory regime”. The Court concluded that if the application was allowed, other applicants without a local connection who was dissatisfied with a referral decision would also be able to frustrate the referral system by refusing to leave until such time as s/he had resided for six months in one area.

A copy of the judgment is here.

Criterion Buildings Ltd v McKinsey & Company Inc (United Kingdom) and another [2021] EWHC 314 (Ch)

High Court, 17 February 2021

The High Court has held that tenants of a commercial building had to pay costs on an indemnity basis, as their liability was governed by the terms of a lease and a supplemental lease that could only be interpreted as meaning that indemnity costs were payable.

The tenants of a commercial property had unsuccessfully argued at the High Court that the landlord's apportionment of the service charge between them was unfair. The High Court subsequently had to determine the basis on which the landlord’s costs should be assessed. The landlord argued that it was entitled to costs based on the terms of the lease and supplemental lease between the parties, and that costs should be paid on an indemnity basis. The tenants argued that costs should be paid on the standard basis.

The High Court held that an award of indemnity costs was appropriate. It construed the leases as meaning that costs were to be paid on an indemnity basis, finding that the covenants to pay landlord's expenses “properly incurred” and “all costs, charges and expenses which the landlord may from time to time incur …” justified that costs should be paid on an indemnity basis.

Although this case concerns commercial property, the law could apply to residential property.

A copy of the judgment is here.

Dorset Council v Cash and others

High Court, 10 March 2021

The High Court has held that an interim injunction granted to a local authority to prevent agricultural land being used for residential purposes should continue until the trial.

Dorset Council had been granted an ex parte injunction to prevent the defendants from (1) stationing residential caravans and other portable structures on agricultural land (aside from the caravan that was already on the land), (2) creating hardstanding on the land; or (3) occupying the land for residential purposes.

One of the defendants (W) maintained that she owned the land, had occupied it since 8 February 2021 with her family, and had applied for planning permission for a change of use of the land so that she could reside on it. W also claimed that she had been suffering from various health issues and had been residing in a car park, meaning that she had to move every month. W argued that Article 8 of the European Convention of Human Rights (“the right to respect for private and family life, home and correspondence”) gave her the right to station caravans on the land, pending the outcome of the trial and the final relief. Dorset Council applied for to extend the injunction until 1 December 2021.

The High Court, in granting the application, held that there was a serious issue to be tried (i.e. whether there had been a breach of planning rules and that Dorset Council had the right to prevent the use of the land as a residential caravan site). Failing to grant an injunction would be facilitating a de facto change in use that could not be compensated for in damages. If alternative accommodation was needed for W, there were other measures that could be taken to address those needs. The Court was not satisfied that W’s occupation of the site would engage article 8 the European Convention of Human Rights. Consequently, the injunction should be continued.

This is an extempore (oral) decision, so the transcript is not yet available.

Investigation into a complaint against Woking Borough Council Case (reference number: 201801485)

Housing Ombudsman, 24 February 2021

The Housing Ombudsman has found Woking Borough Council guilty of severe maladministration after it left an elderly resident with no heating or hot water for almost three years.

In September 2017, an 83-year-old resident (Ms J) contacted Woking Borough Council to complain that she had no heating or hot water. An engineer was unable to gain access to the property until six weeks later (after forcing entry) and capped the gas supply. There was no evidence of further action by Woking Borough Council until September 2018 when an engineer made an annual gas servicing visit and placed a ‘danger notice’ on the boiler. Ms J refused access for gas safety inspections in 2019 and 2020 and so the gas supply remained capped. No attempt was made to investigate what repairs might be needed.

In June 2019, Woking Borough Council wrote to Ms J to say that it wanted to resolve the issue and carry out repairs. The letter asked her to contact it and gave a direct telephone number for the housing team, despite knowing that it did not have a telephone number for her.

The Housing Ombudsman held that while Woking Borough Council may have had difficulties in resolving the issue due to problems accessing Ms J’s property, its lack of action was deeply concerning and it had left an elderly resident in a cold property and unable to wash properly. It had shown a lack of regard to its obligations as a landlord and to the health and safety risks posed to Ms J. It was ordered to pay Ms J £6,000 compensation for the distress and inconvenience caused and to apologise.

A copy of the case summary is here.

Investigation into a complaint against London Borough of Newham (reference 201806819)

Housing Ombudsman Service, 3 March 2021

The Housing Ombudsman has found that London Borough of Newham took too long to deal with a complaint about repairs following a leak, and then failed to offer appropriate compensation.

In 2018, a tenant (Mr G) had to move out of his flat after it suffered flooding due to a leak in the flat above. Mr G contacted London Borough of Newham on several occasions to try and get the repairs carried out, but was unable to get through. He was eventually told that he could carry out the work himself, which he did and subsequently requested reimbursement of £2,296.85 for new flooring and tins of paint. After receiving no response on the matter from London Borough of Newham, Mr G complained but again received no response. Mr G pursued his complaint for more than 18 months before finally getting a response, in which London Borough of Newham said that it would not have advised him to carry out the repairs himself; however, it was unable to verify this, as all telephone recordings were retained for only six months. It acknowledged that its complaint handling had been poor and offered Mr G £100 as compensation.

The Housing Ombudsman found that London Borough of Newham was guilty of severe maladministration and had no specific policy on repairs, meaning that it was unable to determine who was responsible for carrying out the repairs. It ordered it to pay Mr G £800 in compensation, provide training to staff in complaint handling, and produce compensation and repairs policies.

A copy of the case summary is here.

Paul Lloyd is a partner, Helen Gascoigne is an Associate and Catherine Craven is a solicitor at Capsticks.

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